Karnataka High Court
Laxmi W/O Late Franklin vs The State Of Karnataka And Ors on 2 July, 2021
Author: Ashok S. Kinagi
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF JULY, 2021
BEFORE
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
WRIT PETITION NO.201103 OF 2021 (GM-RES)
BETWEEN:
LAXMI
W/O LATE FRANKLIN
AGE: 31 YEARS, OCC: HOUSEHOLD,
R/O. # 13-1-19 LADGERI,
DIST. BIDAR - 585401.
...PETITIONER
(BY SRI. JAIRAJ K BUKKA, ADV.)
AND
1. THE STATE OF KARNATAKA
THROUGH ITS PRINCIPAL SECRETARY,
DEPT. OF REVENUE,
BENGALURU-560001.
2. THE DEPUTY COMMISSIONER
BIDAR-585401.
3. THE TAHSILDAR
BIDAR-585401.
...RESPONDENTS
2
THIS WRIT PETITION IS FILED UNDER ARTICLES OF
226 OF CONSTITUTION OF INDIA PRAYING TO ISSUE A
WRIT IN THE NATURE OF MANDAMUS OR DIRECTION TO
THE 3RD RESPONDENT TO ISSUE THE SURVIVAL
CERTIFICATE TO THE PETITIONER IN VIEW OF ANNEXURE-
D DATED 03.03.2020; AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner has filed the present writ petition
for a writ of mandamus directing the respondent No.3
to issue survival certificate to the petitioner as per
Annexure-D dated 3.3.2020 and to pass an order to
include the name of the petitioner as the legal heir of
Late Franklin, as per the order of respondent No.3
vide Annexure-E dated 7.7.2020.
2. Brief facts leading to the filing of this petition
are as under:
That the petitioner claim that she is the wife of
Late Franklin who was working as CHC 744 as a Head
Constable in the Police Department and he died on
5.1.2020, while on duty. The petitioner submitted a
representation seeking for issuance of Service Book of
Late Franklin and to sanction service benefits to the
petitioner. The petitioner filed online application
seeking for issuance of survival certificate before the
respondent No.4. It is pleaded that Late Franklin was
married to one Chinnamma, WPC No.1447 on
31.12.2004, and thereafter Late Franklin filed a
divorce petition and the same came to be allowed on
28.2.2014 and the marriage of Chinnamma with Late
Franklin was dissolved. After the death of Franklin,
Smt. Kristakumari, mother of Late Franklin filed an
application seeking issuance of legal heir certificate
before the respondent No.3. The respondent No.3
passed an order on 7.7.2020 in favour of the
petitioner. The petitioner filed representation for
issuance of survival certificate before the respondent
No.3, but respondent No.3 has not issued the same.
Hence the petitioner has filed this writ petition.
3. Heard the learned counsel for the petitioner
and learned AGA.
4. Learned counsel for the petitioner submits
that the petitioner is the wife of Late Franklin and he
died on 5.1.2020 leaving behind the petitioner as his
legal heir. Hence the petitioner has applied for
issuance of survival certificate. But the respondent
No.3 has not issued the survival certificate. Hence the
petitioner has no other alternative remedy, but to
knock the doors of this Court. Hence, prayed to allow
the writ petition.
5. Learned AGA submits that the writ petition
involves disputed question of facts and hence the writ
petition filed by the petitioner is not maintainable.
Hence, prayed to dismiss the petition.
6. Heard and perused the records and
considered the submission of learned counsel for the
parties.
7. The petitioner has admitted in the writ
petition that Chinnamma was married to Late Franklin
and later on Franklin filed a divorce petition and the
same came to be allowed on 28.2.2014 and the
marriage of Chinnamma and Late Franklin was
dissolved. Thereafter, the petitioner claims that she
got married to Late Franklin. But the petitioner has
not pleaded particulars about the date of marriage,
etc., and has not produced copy of decree to establish
that the marriage between Chinnamma and Late
Franklin was dissolved. Further, the petitioner except
producing Aadhaar Card, has not produced any other
material to establish that she is the wife of Late
Franklin.
8. The petitioner has not stated how she has got
a legal right to include her name in the survival
certificate. A person fails to establish a legal right, is
not entitled for the relief of mandamus. The said view
is reiterated by the Co-ordinate Bench of this Court in
the case of CHIKKANNA VS. STATE OF KARNATAKA IN
W.P.NO.10666/2012, DD. 18.06.2012.
9. I would like to place reliance on the judgment
of the Hon'ble Supreme Court in the case of
RAJASTHAN STATE INDUSTRIAL DEVELOPMENT AND
INVESTMENT CORPORATION & ANR. VS. DIAMOND & GEM
DEVELOPMENT CORPORATION LIMITED & ANR. [(2013)
5 SCC 470] wherein it is held as under:
"21. It is evident from the above that
generally the Court should not exercise its
writ jurisdiction to enforce the contractual
obligation. The primary purpose of a writ
of mandamus is to protect and establish
rights and to impose a corresponding
imperative duty existing in law. It is
designed to promote justice (ex debito
justitiae). The grant of refusal of the writ
is at the discretion of the Court. The writ
cannot be granted unless it is established
that there is an existing legal right of the
applicant, or an existing duty of the
respondent. Thus, the writ does not lie to
create or to establish a legal right, but to
enforce one that is already established.
While dealing with a writ petition, the Court
must exercise discretion, taking into
consideration a wide variety of
circumstances, inter alia, the facts of the
case, the exigency that warrants such
exercise of discretion, the consequences of
grant or refusal of the writ, and the nature
and extent of injury that is likely to ensure
by such grant or refusal."
10. Merely on the basis of report of the Circle
Inspector and Aadhaar card, the petitioner has failed
to establish her legal right to show that she is the
legally wedded wife of Late Franklin.
11. In view of the above discussion, the writ
petition is dismissed. However, if the petitioner has
got any grievance, the petitioner is at liberty to
agitate her grievance before the appropriate forum.
SD/-
JUDGE
RD
